This appeal is directed against the
judgment of the learned Single Judge of the Kerala High Court whereby
the learned Single Judge allowed the appeal filed against the order of
the Trial Court and declared the election of the appellant void.

3. The appellant and the respondent
were the candidates who contested the election from Ward No.2 of Alangad
Block Panchayat held on 24th September, 2005. The appellant was declared
elected. The candidate who lost the election (respondent herein)
challenged the election by way of an Election Petition before the
Election Tribunal mainly on two grounds. It was first contended that the
officer who accepted the nomination papers of the appellant had no
authority to receive the same and secondly the appellant had not made or
subscribed an oath or affirmation before the Returning Officer or any
other person authorized by the State Election Commission and, therefore,
he was not qualified to fill a seat.

4. The Election Petition was opposed
on the ground that the election petition was not maintainable and that
it was filed after the expiry of the period of limitation. It was
contended that the appellant had signed the oath or affirmation
according to the form set out for the purpose in the First Schedule of
the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as "the
Act") and that the appellant was fully qualified to contest the
election. It was also pointed out that the nomination papers were filed
before the Assistant Returning Officer who was fully competent to verify
the nomination papers and receive the same. Hence there was absolutely
no ground to declare the election as void.

5. The Election Petitioner
(respondent herein) examined five witness and marked 11 documents while
the appellant did not adduce any evidence. The Election Tribunal (2nd
Additional District Judge, Ernakulam) came to the conclusion that the
oath or affirmation of the appellant was made before the Assistant
Returning Officer and it did not matter that the Assistant Returning
Officer had no authority. The Trial Court applying "de-facto doctrine"
held that oath was before an appropriate authority and as per the Rules.
The Election Tribunal also held that the officer who received the
nomination papers was holding the charge of Block Development Officer
and was an Assistant Returning Officer and as such he was competent to
receive the same. The Election Petition was, therefore, dismissed. The
appeal was filed against this order before the High Court on two
grounds, they being:

i) The appellant had not made and
subscribed the oath or affirmation before a person authorized by the
State Election Commission and thereby he was not qualified for being
chosen to fill the seat in the Panchayat.

ii) The appellant had not delivered
the nomination papers to the Returning Officer or to the Assistant
Returning Officer duly authorized by the Returning Officer who had
authority to receive the same.

6. The High Court came to the
conclusion that on both the counts the election was void. The elected
candidate, the appellant herein now comes before us by way of the
present appeal.

7. Shri C.S. Raja, Senior Advocate,
appearing on behalf of the appellant, contends before us that the High
Court has committed a grave error in holding that the appellant had not
made and subscribed the oath or affirmation before the Returning Officer
or any other person authorized by State Election Commission and thereby
he was not qualified to be chosen to fill a seat in the Panchayat.
Learned counsel also urged that the High Court was in grave error in
holding that the officer before whom the nomination papers were tendered
by the appellant had no authority to receive the same.

8. As against this, the respondent
who appeared in person, supported the order of the High Court relying on
the various provisions of the Act. It will be, therefore, for us to
consider as to whether the High Court was right in declaring the
election of the appellant as void.

9. It is an admitted fact that the
State Election Commission had appointed Deputy Director of Fisheries
(Zonal) as the Returning Officer for this election. It is also an
admitted position that one Smt.P.C. Mary was working as Block
Development Officer, Alangad and she retired from service on the
Afternoon of 31.8.2005. There is an order on record (vide Exhibit X-9)
passed by District Collector bearing No.RD.299/2005 dated 31.8.2005 to
the following effect:

"Smt.P.C. Mary, Block Development
Officer, Alangad retired from service on the A.N. of 31.8.2005. She is
relieved of her duties as Block Development Officer on the A.N. of
31.8.2005. Shri O.G. Venugopal, Extension Officer (IRD) will hold full
additional charge of the BDO, Alangad till further orders."

Thus it was Shri O.G. Venugopal who
was holding the charge for Mrs.P.C. Mary. It was this Mr.O.G. Venugopal
who was holding the additional charge of Block Development Officer, had
accepted the nomination of the appellant and it was before him alone
that the appellant had taken the oath. The High Court has found fault
with both the aspects.

10. At this juncture it will be
proper to see a few provisions of the Act on which the parties rely.
Section 29 of the Act provides for the qualifications for Membership of
a Panchayat. Section 29(e) is as under:
"29. Qualifications for membership of a Panchayat A person shall not be
qualified for chosen to fill a seat in a Panchayat at any level unless:
(a) xxx xxx
(b) xxx xxx
(c) xxx xxx
(d) xxx xxx
(e) he makes and subscribes before the returning officer or any other
person authorized by the State Election Commission an oath or
affirmation according to the form set out for the purpose in the first
schedule."

Sections 40, 41, 42, 43 as are
relevant for our purpose read as under:
"40. General duties of district election officer Subject to the
superintendence, direction and control of the State coordinate and
supervise all work, in the district in connection with the conduct of
all elections to the Panchayats in the district.

41. Returning Officers For every
Panchayat, for every election to fill a seat or seats in the Panchayat,
the State Election Commission shall, in consultation with the
Government, designate or nominate one or more returning officer who
shall be an officer of the Government or of a local self Government
Institutions.

Provided that nothing in this
section shall prevent the State Election Commission from designating or
nominating the same person to be the returning officer for more than one
Panchayats lying adjacent.

42. Assistant Returning Officers (1)
The State Election Commission may appoint one or more persons as
assistant returning officers to assist any returning officer in the
performance of his functions.

(2) Every assistant returning
officer shall, subject to the control of the returning officer, be
competent to perform all or any of the functions of the returning
officer.Provided that no assistant returning officer shall perform any
of the functions of the returning officer which relates to the scrutiny
of nominations unless the returning officer is unavoidably prevented
from performing the said function.

43. Returning officer to include
assistant returning officers performing the functions of the returning
officer References in this Act to the returning officer shall, unless
the context otherwise requires, be deemed to include an assistant
returning officer performing any function which he is authorized to
perform under sub-section (2) of Section 42."

The contention of the Election
Petitioner (respondent herein) was that it was Smt.P.C. Mary alone who
was authorized to accept the nomination papers and also to subscribe the
oath to the appellant and since she had superannuated on 31.8.2005, and
was replaced by Shri O.G. Venugopal, Extension Officer, IRD and since
Shri O.G. Venugopal was not authorized specifically by the State
Election Commission or the Returning Officer either to subscribe the
oath or to accept the nomination papers, the appellant in effect had not
taken oath before a properly authorized officer nor had he tendered his
nomination papers before a properly authorized officer.

11. Admittedly, Shri O.G. Venugopal
was holding a full additional charge as per the order of the Collector
from 31.8.2008 upto 6.9.2005 when Smt. M.K. Padmavaty took charge in the
forenoon. The High Court seems to have accepted the contention that
since Shri Venugopal was not specifically authorized by the State
Election Commission, or even by Returning Officer, he had no authority
to either accept the nomination papers or subscribe oath to the
candidates who were tendering the nomination papers. It cannot be
disputed that every candidate has to subscribe an oath before the
Returning Officer or any other person authorized by the State Election
Commission. It has been held by the High Court that Smt.P.C. Mary was
appointed as an Assistant Returning Officer by the State Election
Commission and not by the District Collector. While she was a Block
Development Officer, Shri O.G. Venugopal (PW5) was not even a Block
Development Officer, he was merely discharging the functions of Block
Development Officer as a stop gap arrangement by virtue of an order of
District Collector. The High Court also held that the State Election
Commission has not passed any order designating Shri Venugopal (PW5) as
the Assistant Returning Officer. It was on this ground that the High
Court found that Shri Venugopal did not have a proper authorization.

12. The High Court has dealt with
Sections 39 to 43 of the Act and ultimately held that the combined
reading of Sections 42 and 43 of the Act would make it clear that a
Returning Officer can authorize the Assistant Returning Officer to
perform all or any of the functions of the Returning Officer except the
function of Returning Officer which relates to the scrutiny of
nomination. The High Court further held that there was no material
before the court to hold that Sairabhanu (PW2) who was the Returning
Officer had authorized Shri O.G. Venugopal to discharge the function of
Returning Officer. The High Court held that only other evidence relied
on by the respondent (appellant herein) was Exhibit X-8, a notification
dated 29.8.2005 also could not empower Shri O.G. Venugopal to act as it
could not be said as an authorized by the Returning Officer.

13. Learned counsel for the
appellant invited our attention to the notification dated 29.8.2005
issued by the State Election Commission. The notification which is
Exhibit X-8 before the Election Tribunal, reads as under:

"In exercise of the powers conferred
under sub-section (1) of Section 42 of the Kerala Panchayat Raj Act,
1994 (Act 13 of 1994), the State Election Commission hereby appoints the
Secretary of each block panchayat as the Assistant Returning Officer to
assist the Returning Officers notified in Notification No.192/2005/SEC
dated 18th August, 2005 and 191/2005/SEC dated 18.8.2005 of the State
Election Commission."

Learned counsel also pointed out
before us and it was not contradicted that the District Collector was
designated by the State Election Commission as the District Election
Officer. It will be seen from Section 40 that subject to
superintendence, direction and control of the State Election Commission,
the District Election Officer is duty bound to coordinate and supervise
all the work in the whole District in connection with the conduct of all
elections to the Panchayat in the District. Therefore, it is obvious
that the Collector, Ernakulam, who was appointed as a District Election
Officer was to coordinate and supervise all work.

14. It is also an admitted position
that Shri O.G. Venugopal (PW5) was posted in place of Mrs.P.C. Mary, the
erstwhile Block Development Officer and a Secretary of the concerned
Block Panchayat and that atleast for that period Shri O.G. Venugopal was
holding full additional charge of the BDO, Alangad Block Panchayat. It
is, therefore, obvious that Shri O.G. Venugopal, who was an Extension
Officer during the period from 31.8.2005 upto 6.9.2005, was acting as a
Block Development Officer and the Secretary to the Block Panchayat for
all practical purposes. Merely because Shri O.G. Venugopal was holding
additional charge of the BDO, Alangad, it did not mean that he was not
holding the full charge of the post of BDO. It was, therefore, obvious
that he was, during that period, working as a Secretary of the Block
Panchayat. This position could not be and cannot be contradicted. Now,
revereting back to the aforementioned notification dated 29.8.2005, it
is obvious that the said notification appointed "Secretary of each Block
Panchayat" as the "Assistant Returning Officer" to assist the Returning
Officer for that particular Block.

15. There is also no dispute that
Sairabanu (PW2) was the Returning Officer under the notifications by the
State Election Commission dated 18th August, 2005. Once this position is
clear, the very look of the notification suggests that the Secretaries
of each Block were not empowered, under the said notification, in their
name. It was only the incumbent of the office of the Secretary of each
Block Panchayat who was empowered to act as the Assistant Returning
Officer. It, therefore, naturally follows that every incumbent who was
working, at the relevant time, as the Secretary of the Block Panchayat
was empowered to act as the Assistant Returning Officer. There is no
reason to hold that Shri O.G. Venugopal was not working as the Secretary
to the Block Panchayat, Alangad. The order, quoted by us, passed by the
District Collector who was also the District Election Officer,
specifically provided that Shri O.G. Venugopal was to hold full
additional charge of BDO. Resultantly he was also the Secretary of the
Block Panchayat and was acting as such. Once this position is clear,
then it is obvious that he had all the powers, authority and the
responsibilities of an Assistant Returning Officer. At this juncture it
will be necessary to note the specific provision under Section 42(2) of
the Act under which every Returning Officer, subject to the control of
the Returning Officer, would be competent to perform all or any of the
functions of the Returning Officer. Thus by necessary logic Shri O.G.
Venugopal was competent to perform all or any of the functions of the
Returning Officer including subscribing oath and/or accepting the
nomination papers.

16. The proviso to sub-section (2)
of Section 42, however, specifically provides that the Assistant
Returning Officer could not perform any of the functions which relate to
the scrutiny of nominations unless the Returning Officer is unavoidably
prevented from performing the said function. This proviso would mean
that in an emergent situation where the Returning Officer is not able to
function by some unforeseen event as a Returning Officer, the Assistant
Returning Officer could also go ahead with the task of scrutinizing the
nominations. That, however, would depend upon the evidence. In the
present case this was not the situation. All that Shri O.G. Venugopal
did was to act as the Assistant Returning Officer owing to his holding a
full charge of the post of the Secretary to the Block Panchayat. It is
also an admitted position and not contradicted before us that every such
BDO for a Block Panchayat acts also as a Secretary to the Block
Panchayat. If the language and spirit of Section 42(2) is realized, then
there is no question of holding that Shri O.G. Venugopal did not have
any authority to act as the Assistant Returning Officer.

17. In para 17 of its judgment, the
High Court though had noticed Exhibit X-8, curiously observed that such
authorization has to be given by the Returning Officer. We do not see,
in the language of Section 42(2) any authorization by the Returning
Officer for an Assistant Returning Officer to perform any function.
Section 42(2) is merely an empowering section which declares that the
Assistant Returning Officer is competent to perform all or any of the
functions of the Returning Officer. However, his functions are subject
to the control of Returning Officer, meaning thereby that he can be
prohibited by the Returning Officer to do a particular function or his
actions would be subject to the rigid control of the Returning Officer.
However, in order to clothe him with the competence to act, he does not
require any specific authorisation from the Returning Officer.

18. Indeed the observations of the
High Court in its judgment, more particularly in para 17 are clearly in
total derogation of the specific language of Sections 42(1) and 42(2) of
the Act. It is to be noted that Assistant Returning Officers are to be
appointed by the State Election Commission and not by the Returning
Officer. The Assistant Returning Officers draw their powers directly
from the State Election Commission. We have already pointed out that the
State Election Commission, in the present case, had empowered all the
Secretaries of the Block Panchayat as the Assistant Returning Officers.
It is not necessary that a Returning Officer should be assisted only by
one Assistant Returning Officer.

Therefore, in cases where there are
more than one person acting as the Secretaries (which is unlikely case),
all such Assistant Returning Officers could assist the Returning
Officer. The language of sub-section (1) of Section 42 is more than
explicit to so suggest. The High Court demanded some evidence to show
that the Assistant Returning Officer of Ward II, Alangad Block Panchayat
was authorized by the Returning Officer to discharge the functions of
Returning Officer. We do not see any such necessity from the language of
Section 42 of the Act. The High Court has probably made the observations
owing to the language of Section 43 of the Act which provides that
wherever the Returning Officer is referred to in the Act, it would be
deemed that the reference includes the Assistant Returning Officer
performing any function which he/she is authorized to perform under
sub-section (2) of Section 42. The words in Section 43 "any function
which he is authorized to perform under sub-section 2 of Section 42" do
not mean to suggest that there has to be an authorization, much less in
writing by the Returning Officer in favour of the Assistant Returning
Officer. The words refer only to the functions which the Assistant
Returning Officer 'can' perform or is 'capable' of performing under
sub-section (2) of Section 42. We do not see any necessity of specific
authorization on behalf of the Returning Officer in favour of the
Assistant Returning Officer. If we read Section 43 of the Act as rigidly
as the High Court has done, then there may be a situation where the
proviso to Section 42 would itself become otiose.

19. It will be seen that under the
proviso during the emergent situation where the Returning Officer is
unavoidably prevented to perform the functions of scrutiny of
nominations, the Assistant Returning Officer can go ahead even with that
function. Now, if there arises a situation that on the date fixed in the
election programme for scrutiny of nominations, the Returning Officer
meets with an accident and is not able to communicate anything to the
Assistant Returning Officer, under such emergent situation, the
Assistant Returning Officer can and has to go ahead with the task of
scrutinizing the nominations because the scrutiny must be held on that
particular date as per the election programme. If we insist on any such
so-called written authorization, the whole proviso would be rendered
meaningless. This aspect has completely been missed by the High Court.

20. We are, therefore, of the clear
opinion that Shri O.G. Venugopal who was, at the relevant time, working
as a Secretary to the Block Panchayat and was holding a full additional
charge of the Block Development Officer for Alangad Block Panchayat was
quite competent to subscribe oath to the appellant. He was also quite
competent to accept the nomination papers.

21. It is obvious that Shri
Venugopal had to accept the nomination papers and subscribe oath on the
day that he did introduce the oath to the appellant and also accepted
his nomination papers due to the absence of the Returning Officer. It is
unthinkable that during the period when the election programme is on,
there would be nobody to accept the nomination form and also to
introduce the oath to a person tendering his nomination form. Such
situation can never be imagined. There could not be a void during the
period when the election programme is on. It is unthinkable that for the
Alangad constituency in the absence of returning officer, nobody could
accept the nomination form or subscribe the oath during the period from
31.8.2005 to 6.9.2005. This is also one of the reasons why we are of the
opinion that the judgment of the High Court has become erroneous.

22. Last but not the least, the
acceptance of nomination papers of the appellant and the subscription of
oath by Shri Venugopal (PW5) to the appellant was never objected to
either by the Returning Officer or by the subsequent BDO who took the
charge of that post from PW5 on 6.9.2005. Again all these objections
were also not raised at the time when the scrutiny of the nomination
papers was done. Ofcourse that may not be the only reason to throw out
the election petition but that is certainly an additional factor to be
taken into consideration.

23. Once this position is arrived
at, there would be no necessity to even refer to the de facto doctrine
as has been done by the Election Tribunal because we have considered
that Shri Venugopal (PW5) was perfectly competent to accept the
nomination papers as also to subscribe the oath.

24. The High Court in para 18 of its
judgment has referred to Exhibit X-2, a notification and has held that
since Shri Venugopal (PW5) could not come in the category of a Returning
Officer, he could not have introduced oath. The observation is patently
incorrect in view of what we have held above relying on Sections 42 and
43.

25. It has also been held that the
District Collector was not competent to confer any powers of Returning
Officer or Assistant Returning Officer to PW5. In our opinion this
observation is also not correct in view of the fact that for a limited
period between 31.8.2005 to 6.9.2005 Shri Venugopal (PW5) was actually
acting as the Secretary to the Block Panchayat, since he was holding a
full additional charge of the Block Panchayat. His very appointment to
that post would clothe him by the powers under the State Election
Commission vide notification Exhibit X-8. The other authorities referred
to by the High Court in its judgment are not apposite to the controversy
in question.

26. The respondent herein has
tendered arguments in writing after the matter was closed. We have gone
through the said written note of arguments carefully. In paras 1 and 2
again the same argument is repeated that PW5 did not have a proper
authorization from the Returning Officer. An absurd statement has
thereafter been made to the following effect:

"There was only Exhibit X-8(a)
endorsement, which is also disputed as it was only the creation done
just before producing it before the court for creating false evidence,
of the returning officer which is quoted in para 17 of the impugned
judgment."

We are surprised at such a statement being made without any basis, rhyme
or reason. This question of Exhibit X-8(a) being false document was not
even raised before the High Court. It is then expressed in the same
paragraph that document Exhibit X-7(a) was got proved before the trial
court which contained the instructions from the State Election
Commission, issued in exercise of powers under Article 243K(1) of the
Constitution of India read with Sections 44 and 48A of the Act and that
the said instructions included that there has to be a specific
authorization of the Returning Officer in favour of the Assistant
Returning Officer. Firstly this document was never referred to during
the arguments before us and it is only now, after the case is closed and
the judgment reserved that the point is being raised. Further, the said
document was never produced before us by the respondent who chose to
argue his case in person. Lastly whatever may be the instructions from
the State Election Commission, they cannot override the provisions of
the Act which we have taken into consideration for holding that no such
specific authorization was ever necessary. The contention is, therefore,
rejected.

27. A question has been raised then
that the appointment and control of the Secretaries of the Panchayats
are governed by Sections 179 and 180 of the Act. It is, however, not
clarified as to how there is any breach of Sections 179 and 180 of the
Act. We have already explained that the District Collector had empowered
PW5, with the full charge of Smt.P.C. Mary. If, Smt.P.C. Mary was acting
as the Secretary of the Block Panchayat then automatically PW5 would get
all those powers by his holding the full charge of Smt.P.C. Mary. The
other contentions raised in paras 4 and 5 of the written arguments have
already been considered and they are nothing but the repetition of the
earlier arguments. Reference to Articles 243F(a) and 191(e) of the
Constitution of India is wholly unnecessary.

28. In para 5 again the question
regarding the oath has been raised. There can be no doubt that taking of
the oath is a sine qua non for a proper candidature. Again an absurd
statement is to be found to the following effect:

"If so that will hit directly the
mandate of Article 243F, 173(a) and 191(e) of the Constitution of India
read with Section 36(2)(a) of the Representation of the People Act,
1951read with the decision of the Hon'ble Apex Court in Shaik Abdul
Rahman v. Jagat Ram Aryan [AIR 1969 SC 1111).

The contentions raised in paras 5(a)
and 5(b) on the basis of the reported decision in Shaik Abdul Rahman
(supra) are completely meaningless. Further contentions raised in para
5(b) are nothing but the repetition of the earlier contentions. It has
already been explained by us earlier that it was not necessary for PW5
to be in the rank of gazetted officer in the State service. The
respondent has completely misread Exhibit X-2(a), the notification
issued under Section 29(a) of the Act.

29. It is suggested in para 5(c)
that by Exhibit X-9, the District Collector had provided the full
additional charge only of the Block Development Officer, Alangad to PW5
and not that of the Secretary of Block Panchayat, Alangad. This is a
complete misreading of the notification. What was authorized by the said
notification was the full charge of Smt.P.C. Mary. Once it is an
admitted position that the BDOs were acting as the Secretary, Block
Panchayat and more particularly since Smt.P.C. Mary was acting as the
Secretary, PW5 would enjoy the same powers. The contentions raised in
para 5(c) has, therefore, to be rejected.

30. The contentions raised in para
5(d) regarding Section 52 of the Act read with Rule 6 of the Kerala
Panchayat Raj (Conduct of Election) Rules, 1995 is totally irrelevant.
Some other contentions have been raised at page 9 of the Note in para 5
which should in fact be para 6. The contentions are again in respect of
the authorization under Section 43 of the Act and it is apprehended that
in the absence of such authorization the election machinery will break
down. We only say that since the Assistant Returning Officer has to act
under the control and supervision of the Returning Officer, the
apprehension is not only unfounded but absurd. We are not prepared to
disbelieve in the State machinery.

31. In para 6(a) a further question
is raised based on Sections 52(1) and Section 55(2)(b) of the Act and it
is suggested that no other person or officer can perform all or any of
the functions of the Returning Officer of conducting the elections. We
have already shown earlier the scope and the powers of the Assistant
Returning Officer. The contention has, therefore, to be rejected.

32. Lastly it is suggested that the
District Election Officer has no authority to appoint any person as
Assistant Returning Officer without the concurrence of the State
Election Commission. That may be so. In this case the District Election
Officer has not appointed PW5 as Assistant Returning Officer. It is
because of Notification Exhibit X-8(a) that PW5 could ipso facto take
the authorization from the State Election Commission to act as the
Assistant Returning Officer. We, therefore, find no merits in the
arguments.

33. In view of the above, we allow
this appeal, set aside the order of the High Court and hold that the
Election Tribunal was right in upholding the election and dismissing the
election petition. Counsel's fee fixed at Rs.10,000/-.